The assessee has filed the present Miscellaneous Petitions on the ground that there is an error crept in the order of this Tribunal dated 21.10.2016.

2. Shri S. Chandrasekaran, the Ld. representative for the assessee, submitted that this Tribunal has found that the assessee has two units. One of the unit has two undertakings which generate electricity. The 2 M.P. Nos.55 to 58/Chny/17 other unit generates chlorate. The unit which generates chlorate is not eligible for deduction under Section 80-IA of the Income-tax Act, 1961 (in short the), whereas, the other two units which generate electricity is eligible for deduction under Section 80-IA of the. According to the Ld. representative, the assessee suffered loss in chlorate unit. In fact, the loss suffered by the chlorate unit to the extent of 47,71,749/- was reduced from the gross total income. This Tribunal, according to the Ld. representative, without considering the deduction already made by the assessee with regard to loss suffered in chlorate Division, found that the loss claimed by the assessee has to be set off against the income from gas power plant. According to the Ld. representative, this observation of the Tribunal leads to a wrong conclusion. The claim of the assessee, according to the Ld. representative, is that the loss suffered in chlorate Division was already reduced from gross total income, therefore, it cannot be deducted once again. Hence, according to the Ld. representative, there is error in the order of this Tribunal.

3. Referring to the judgment of Apex Court in Synco Industries Ltd. v. Assessing Officer (Income-Tax) (2008) (299 ITR 444 [LQ/SC/2008/698] ), the Ld. representative for the assessee submitted that the Apex Court in categorical terms found that when the assessee had no gross total income, then it is not entitled for deduction under Chapter VIA of the. Referring to the judgment of Apex Court, more particularly page 456, the Ld. representative submitted that the gross total income has first got to 3 M.P. Nos.55 to 58/Chny/17 be determined after adjusting losses, etc. and if the gross total income of the assessee is NIL, the assessee would not be entitled for deduction under Chapter VIA of the. In this case, according to the Ld. representative, after adjusting the losses suffered by the Chlorate Division, still the assessee has gross total income, therefore, the assessee is eligible for deduction under Section 80-IA of the. Therefore, according to the Ld. representative, the judgment of Apex Court is squarely applicable in favour of the assessee. Hence, according to the Ld. representative, there is an error in the order of this Tribunal which needs to be rectified.

4. On the contrary, Shri AR.V. Sreenivasan, the Ld. Departmental Representative, submitted that there is no error in the order of this Tribunal. The Tribunal in categorical terms found that the loss suffered by the assessee in Chlorate Division has to be set off against the profit. Therefore, according to the Ld. D.R., the Tribunal by placing reliance on the judgment of Apex Court in Synco Industries Ltd. (supra) found that the assessee is not eligible for deduction under Section 80-IA of the Act, therefore, there is no error in the order of this Tribunal.

5. We have considered the rival submissions on either side and perused the relevant material available on record. The claim of the assessee is that the loss suffered in Chlorate Division to the extent of 47,71,749/- was already adjusted against the gross total income and 4 M.P. Nos.55 to 58/Chny/17 even after adjustment, the gross total income of the assessee remains positive. However, this Tribunal proceeded on the presumption that the loss suffered in Chlorate Division was not set off earlier, therefore, it has to be adjusted first. Hence found that the assessee is not eligible for deduction in view of the judgment of Apex Court in Synco Industries Ltd. (supra). If the loss suffered in Chlorate Division was already adjusted, this Tribunal is of the considered opinion that there is no need for set off of same loss once again for the purpose of arriving gross total income for computation of deduction under Section 80-IA under Chapter VIA of the.

6. It is also not disputed that adjustment of loss of 47,71,749/- was already made and the gross total income of the assessee remains at positive. The judgment of Apex Court in Synco Industries Ltd. (supra) says that if the gross total income is NIL, then the assessee would not be entitled for deduction under Chapter VIA of the. Therefore, the Ld. representative for the assessee rightly claims that the judgment of Apex Court in Synco Industries Ltd. (supra) supports the case of the assessee. In other words, the judgment of Apex Court is in favour of the assessee.

7. In view of the above, there is an error which crept in the order of this Tribunal which can be rectified only after recalling the order. Therefore, the order of this Tribunal dated 21.10.2016 is hereby recalled. Now the appeal of the assessee in I.T.A. Nos.2042, 2042, 2044 & 5 M.P. Nos.55 to 58/Chny/17 2045/Mds/2016 stands restored on the file of this Tribunal. The Registry is directed to post the appeal for final disposal before the regular Bench on 27.08.2018.

8. With the above observation, the Miscellaneous Petitions filed by the assessee stand allowed. Order pronounced court on 12 th June, 2018 at Chennai. sd/- sd/- (. ) (... ) (A. Mohan Alankamony) (N.R.S. Ganesan) /Accountant Member  /Judicial Member /Chennai, 4/Dated, the 12 th June, 2018. Kri. . )5% 6% /Copy to:

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